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Hew Gerrard, Senior Associate, leads Glossop’s VCAT advocacy practice He has extensive experience appearing before VCAT as an advocate.
Much to our luck, Hew reviews the key VCAT decisions on the planning and environment list each month so that you dont have to.
The Tribunal published 42 planning decisions in the Land and Environment Division in February. Eagle-eyed observers will note the change of language in this opening sentence to reference ‘planning decisions’ and ‘Land and Environment Division’. This is due to the Planning and Environment List being no more as of 2 February (see https://www.vcat.vic.gov.au/news/new-structure). Many practitioners will have already noticed this change on Orders coming through.
It must also have been ‘rural month’ at the Tribunal in February with the decisions of interest all stemming from rural Councils.
Morris v Central Goldfields SC (Corrected) [2026] VCAT 79 was of some novelty for the position of the Council in the proceeding being:
Council does not intend to make any substantive submissions to the Tribunal. As outlined above, Council neither supports nor opposes the planning officer’s views and is content for the Tribunal to determine the Permit Application as it sees fit.
The reason for the Council’s neutral position was:
2. Central Goldfields Council (‘Council’) did not decide the application within the prescribed time. Following the application for review, the Council’s planning officer subsequently recommended refusal on six grounds. However, Council did not put a formal position to the Tribunal on this application, submitting that:
6. At a Council meeting on 17 December 2025, the Permit Application was listed as Item 7.4 on the Agenda. However, no Councillors moved a motion to either adopt the officer’s recommendation or to adopt an alternative resolution. Nor did any Councillors move a motion to defer the matter for consideration at a later date.
7.The consequence is that Council has no formal position to put before the Tribunal in this proceeding.
3. An application under Section 79 of the Planning and Environment Act 1987 (Vic) the Council is not required to decide the matter. Section 4(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) states a failure to decide is deemed to be a decision to refuse to make the decision. However, it is the usual practice for Council to provide a position on the matter to assist the Tribunal. While I can and have given some weight to the officer’s report, I am required to assess this application on its merits afresh.
Borg v Macedon Ranges SC [2026] VCAT 78 concerned a proposed dwelling in the Farming Zone. The Tribunal made useful comments concerning the ‘need’ for a dwelling.
79. Before turning to this question however I will address a matter that arises from the submissions and references to various past decisions of this division and other divisions of the Tribunal. More particularly the matter is about the enquiry to be made about the relationship between the use of the land for a dwelling and agricultural use of that land.
80. As I have set out above, the grounds of the council raise matters about the need for the dwelling or nexus between the dwelling and the proposed horse husbandry operations. Submissions have been made about the viability of that operation, whether it is genuine or not, whether it requires a full-time presence on the land and so, whether the dwelling has some form of necessary association with the agricultural use.
81. Having considered the purposes of the FZ, the table of uses under clause 35.07-1 and the decision guidelines, I have come to the view that this approach misconstrues the present construction of the FZ and decision guidelines. I also find that such tests do not arise from planning policy at a state level or from clause 14.01-1L. My reasons for these conclusions follow.
82. I turn first to the FZ.
83. In its present formulation, there is no decision guideline or test arising from the purposes of the FZ or the conditions for use of the land for a dwelling under clause 35.07-1 that require a dwelling to be ‘reasonably required for the operation of the agricultural activity conducted on the land’. What the purposes of the FZ and decision guidelines direct attention to is what impact the use of the land for a dwelling may have on the use of the subject land and surrounding FZ land for agricultural activity. The decision guidelines set out under clause 35.07-6 can be seen to be broadly directed to this question.
84. At its highest the decision guidelines call for a consideration of whether a dwelling (or other non-agricultural use) would ‘support and enhance’ agricultural production. Such a test is not as high as has been put by the council as to whether the dwelling is needed to support and enhance the agricultural production. This would be the wrong question. Such a question would apply the test of one use must occur in conjunction with another use as set out under clause 64.02 of the planning scheme. There are no conditions in the table of uses at clause 35.07-1 or in the decision guidelines that the dwelling must be ‘in conjunction with’ an agricultural use.
85. The proper question is whether the dwelling can support the agricultural production, as articulated under the decision guidelines. The answer to this question will turn on the facts and circumstances of the particular proposal and the existing or proposed agricultural use of the land or the potential agricultural uses of the land. These are the questions that the decision guidelines of the FZ pose. They are questions directed to assessing the potential for possible land use conflicts and decision making that avoids loss of agricultural land either from a land use conflict point of view or by a use or development that removes such land from the pool of agricultural land across Victoria.
86. An important element of any such analysis under the decision guidelines will therefore be the context of the subject land and its surrounds in respect to what potential arises for a land use conflict and what is the agricultural productivity of the land and its surrounds. Put another way, to what agricultural use the land and surrounding FZ might be put and to what extent a dwelling on the subject land would conflict with that use will be a matter of the site’s agricultural land capability and that of the surrounding land.
87. Under the present formulation of the FZ therefore, to ask the question or base a decision on whether the dwelling is needed to support the agricultural activity is asking the wrong question.
88. The council submitted that clauses 14.01-1S and 14.01-1L of the planning scheme ‘clearly convey the need’ for a dwelling application to demonstrate a nexus between the dwelling and agricultural activity. I can find no express provisions in clause 14.01-1S for such a nexus to be demonstrated. What can be inferred from the strategies of this clause is an approach that calls for a contextual assessment of the agricultural land, its productivity and how a non-agricultural land use or development may impact on the overall objective to protect Victoria’s agricultural base by preserving productive farmland. Strategies about housing growth in rural areas, seeks to limit new housing through various means. No strategy calls for an analysis of the nexus between agricultural use of the land and a proposed dwelling.
89. The local policy at clause 14.01-1L sets out a series of strategies which include the following:
Ensure use and development of agricultural land relates to the ongoing productive use of the land for agricultural purposes.
…
Ensure development, including dwellings, relates to agricultural production and is consistent with the capability of the land.
…
Ensure any use of the land for residential activity is secondary or ancillary to the primary agricultural use of the land.
90. Again, like the state policy, this policy does not expressly call for a nexus between the proposed dwelling use and agricultural activity. The strategies call for an assessment of how a use or development, including a dwelling, ‘relates’ to agricultural production. The analysis that is called for is about the relationship between the two uses, rather than a demonstration of absolute need or nexus. An analysis for need or nexus is, in light of the structure of the FZ discussed above, the wrong question. When viewed through the lens of the state policy and FZ, the strategies of clause 14.01-4L seek for a dwelling proposal to demonstrate a relationship that supports ongoing productive agricultural use of the land. What is the productive agricultural use of the land may be ascertained by considering the capability of the land. These policy elements do no more than reflect what is set out in the decision guidelines of the FZ.
91. Finally, that the policy seeks that residential activity should be secondary or ancillary to agricultural use can also be seen to be consistent with the FZ purposes and decision guidelines. It is a strategy that seeks to ensure that agricultural land uses remain the dominant use of the land.
92. For these reasons I do not read down clause 14.01-1L as was suggested by the applicants. Nor do I read the policy to require a relationship between a dwelling and agricultural land use that is any higher than that sought under the purposes and decision guidelines of the FZ. It is a policy that reflects and amplifies the purposes in the FZ and objectives of state level policy.
93. To be clear however this does not mean a dwelling land use in a FZ will always be acceptable based on mere assertions of it supporting agricultural activity. A proposal to use agricultural land for a dwelling must demonstrate that it is an acceptable planning outcome having regard to those matters set out under the FZ and related planning policy. I repeat what I have set out above, that such an assessment of the acceptability of such a use requires a contextual analysis that is shaped by the purpose and decision guidelines of the FZ, related policy strategies and the agricultural capability of the subject land and surrounds.
Nontapan and Smith Pty Ltd V Surf Coast SC [2026] VCAT 104 involved a declaration proceeding as to whether a permit was required to remove a tree. The facts in the matter were not disputed, however the argument arose as to the meaning of a SLO6 exemption being:
A permit is required to remove, destroy or lop… any exotic tree greater than 5 metres in height.
This does not apply:
…
If the vegetation is within 2 metres of the outer edge of the roof of a building or overhangs this area.
The tree in question was greater than 5m in height and part of its canopy overhung an area 2 metres from a building. The Council position was:
15. Council says that the branches, or part thereof of the subject tree that are within two metres of the outer edge of the roof of the dwelling may be removed, destroyed or lopped without a planning permit. Conversely, all parts of the subject tree that are more than two metres from the outer edge of the roof of the dwelling or not overhanging this area require a permit for the removal, destruction or lopping.
In contrast the applicant’s position was:
19. The proper construction of the phrase ‘[I]f the vegetation is within 2 metres of the outer edge of the roof of a building or overhangs this area’ includes:
trees whose trunk is within two metres horizontally of the outer edge of a roof; or
trees whose branches overhang the area within two metres horizontally of the outer edge of a roof.
The Tribunal found:
38. Thus, the consideration of the relevant exemption in this proceeding is more focused to: a permit is required to remove, destroy or lop the subject tree, but a permit is not required if the subject tree overhangs the area within two metres of the outer edge of the roof of a building.
39. The relevant exemption does not seek to qualify or limit the extent of the activities that can occur without a permit. Without such qualification or limitation, the meaning of the relevant exemption is that all three activities that is, the removal, the destruction or the lopping can occur without a permit under SLO6.
40. Had the drafters of the exemption intended to limit, qualify or restrict the operation of the exemption from the need for a permit for the three activities, the drafters of the scheme would have made that clear. They have not done so.
41. Thus, when considering the text of the relevant exemption, I find that a permit is not required for the removal, destruction or lopping of the subject tree because it overhangs the area that is within two metres of the outer edge of the roof of a building.
As always, if Glossop Town Planning can be of any assistance with any VCAT matters, please contact either Hew (VCAT advocacy) or John (VCAT expert evidence) to discuss.